Access to confidential medical records by courts and tribunals: the inapplicability of the doctrine of public interest immunity.

Abstract

A number of Australian courts' decisions have afforded protection to public records. Statutory protection has also been given to counselling records in some jurisdictions in the context of the provision of services to victims of sexual assault. In the aftermath of the extension of public interest immunity in the particular circumstances of Clifford v Victorian Institute of Forensic Mental Health [1999] VSC 359, the argument was raised that a further extension should be made to protect personal health records against attempts at regulatory investigation of allegations of unprofessional conduct. In Royal Women's Hospital v Medical Practitioners Board (Vic) [2006] VSCA 85 the Victorian Court of Appeal unanimously declined to make such an extension. This appears to be indicative of a shift by Australian courts toward compelling disclosure of medical records in the interests of fairness save in very exceptional circumstances.